1983 P Cr (PLP)

KHALIL‑UR‑REHMAN KHAN, J.‑‑Muhammad Afzal son of Muhammad Amir (aged 18 years) was tried by the learned Additional‑ Sessions Judge, Sargodha, under section 302/307, P. P. C. for committing the murder of Ahmad Khan, a boy of about 13/14 years of age and murderous assault on Muhammad Zaman, the father of the deceased by causing them injuries with a hatchet. He was convicted under both the charges and was sen tenced as under :_ (1) Under section 302, P. P. C. sentenced .to death and a fine of Rs. 5,000 or in default of payment thereof to undergo R. I. for two years. The fine, if realized, was ordered to be paid as compensation to the heirs of the deceased. (2) Under section 307, P. P. C. sentenced to undergo seven years' R. I. and a fine of Rs. 1,000 or in default of payment thereof to further undergo R. I. for one year. The fine, if realized, was to be paid to Muhammad Zaman as compensation. In case of non‑confirmation of the sentence of death awarded to Muhammad Afzal, the sentences were ordered to run concurrently. The convict has come up in 'appeal to this Court against his convictions and sentences. Case is also before us under section 374, Cr. P. C. for confir mation of the sentence of death. This judgment shall dispose of the appeal as well as Murder Reference No. 315 of 1979.

2. The facts of the prosecution case, as narrated in the first information report, are that on 9th of August, 1978, at about 9/10 p. m. Muhammad Zaman (P. W. 8), the first informant in the case, was lying on a cot alongwith his son Ahmad Khan (deceased) in front of his dera. Mst. Alam Khatoon, his wife was also sitting there on a separate cot. Muhammad N8waz and Ramzan P. Ws. were also sitting there on a sepa rate cot and were talking with Mst. Alam Khatoon. A lantern was also lit and was hanging by a wall nearby. All of a sudden Muhammad Afzal, appellant, who was armed with a hatchet, came there and after raising a lalkara, that he had come to take the revenge of the abduction of his paternal aunt, gave a hatchet blow which fell on the head of Ahmad Khan who fell down from the cot The complainant stepped forward to catch hold of the accused who gave another blow which fell on his left hand. The accused repeated the blow which fell on the left side of the head of the complainant. Muhammad Nawaz and Muhammad Ramzan P. Ws. tried to apprehend the accused who succeeded in making good his escape with his hatchet. The motive for the alleged commission of the offence, according to the complainant, was that about 5/6 years prior to the occurrence, Muhammad Nawaz, a first‑cousin of the complainant, bad abducted Mst. Fateh Bibi, a paternal aunt of the appellant who was later returned to her parents through the intervention of the Panchayat. It is alleged that it was this grudge on account of which the appellant, while armed with a hatchet, had come to the house of the complainant and attacked them as a result of which he was seriously injured and his son Ahmad Khan met his death.

3. The first information report (Exh. P. K.) was recorded by Muhammad Yousaf A. S.‑I. Police Station Mitha Tiwana (P. W. 10) on 10th of August, 1978 at 1‑30 a. m. in the night. He prepared injury statement (Exh. P. W.) of Muhammad Zaman P: W. and sent him to the hospital for medical examination. He then proceeded to the spot reaching there at 5 a. m. the same day. He prepared the injury statement (Exh. P. N.) and inquest report (Exh. P. N./1) of Ahmad Khan deceased and sent the dead body to Civil Hospital, Jauharabad, ‑for post‑mortem exami nation. He then inspected the spot and took into possession a lantern (Exh. P. 4) vide memo. Exh. P. F. He also took into possession blood‑stained cot P. 5 vide memo. Exh. P. G. He also collected blood‑stained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh. P. M. and Exh. P. J. He arrested Muhammad Afzal, accused, on 11th August, 1978 from the dera of Ata Muhammad in the area of village Okhali Mohala, While in police custody, the accused led to the recovery of hatchet P. 6 from a kotha at his dera which was taken into possession vide memo. Exh. P. L. The blood‑stained earth and the hatchet were sent to the Chemical Examiner, which according to the report of the Serologist were stained with human blood. 4. (Medical Evidence).

5. The prosecution in order to prove its case, produced Muhammad Zaman, first informant (P. W. 8) and Muhammad Ramzan (P. W. 9) as eye‑witnesses. In addition to the ocular evidence, reliance was also placed on the recovery of hatchet at the instance of the appellant, the medico‑legal report of Muhammad Zaman, injured P. W. and the post‑mortem report of Ahmad Khan deceased.

6. The appellant in his statement under section 342, Cr. P. C. denied the prosecution version and pleaded that he was innocent. He, however, did not produce any defence.

7. Learned counsel for the appellant argued that the occurrence took place in the dead of the night between 1 and 3 a. m. and that Muhammad Ramzan (P. W. 9) the other eye‑witness cannot be believed to be present at the time when the deceased as well as Muhammad Zaman P. W. re ceived the injuries. The plea that the occurrence did not take place at 9110 p. m. was based on the time that was noted by Dr. Muhammad Afzal P. W. between death and post‑mortem examination. ‑In this respect it is sufficient to mention that the time mentioned is mere approximation and on this account alone the version of the prosecution as to the time of occur rence cannot be belied. In any case, the presence of Muhammad Zaman father of the ill‑fated boy at the time of occurrence was not denied even by the learned counsel as he received injuries during the course of transaction in which Ahmad Khan lost his life. In these circumstances, the time a which the occurrence took place becomes unimportant and inconsequen tial. At best, the presence of Muhammad Ramzan P. W. may be ruled out. Even if we are to discard the testimony of Muhammad Ramzan (P, W. 9), on the basis of the aforesaid reasoning, still we have the testi mony of Muhammad Zaman the injured eye‑witness. His testimony stand duly supported by the medical evidence. This evidence inspires confidence and in our considered view is sufficient to prove the guilt of the appellant beyond any shadow of doubt. It was in view of this situation that the learned counsel for the appellant argued the appeal mainly on the question of sentence. The plea raised in this respect was that Ahmad Khan the ill‑fated boy received the injuries without there being any intention on the part of the appellant to cause him the injuries or to kill him, as at best motive to kill Muhammad Zaman (P. W. 8). the father of the boy could be attributed to the appellant. The boy was injured mistakenly as he was lying alongwith his father Muhammad Zaman on the same cot. Elabora ting the argument, it was submitted that Muhammad Zaman himself admitted that he did not like the return or restoration of Mst. Fateh Bibi as she was from the family of his enemy, though Muhammad Nawaz who had abducted her wanted to restore her. Learned counsel on this premises argued that death of Ahmad Khan was caused due to mistake and that in view of the law laid down in Nawab v. The Crown (1969 S C M R 855) the appellant cannot be held guilty of the offence under section. 302, P. P. C. and that the offence made out falls under section 304‑I P. P. C. In the precedent case, Ataullah Head Constable asked Imam Din, father of the appellant why his son was not attending the parade. He replied that only those persons could be asked to attend the parade who had been allotted land for cultivation and that as no land had been given to him or his son they would not attend the parade. Ataullah Head Constable told Imam Din that it was the duty of every Pakistani to attend the parade but it did not appeal to Imam Din who used strong language, which was replied in the same tone, and thereafter Ataullah got up and pulled the beard of Imam Din. Almost immediately after this, Nawab son of Imam Din was seen coming from his house armed with a gun. When he was at a distance of a few Karams from the Head Constable, he fired at him causing injuries on his right thigh. Ali Sher Lambardar, Kanwal Khan and Budhu Khan tried to prevent him from firing and Head Constable ran in order to save himself. Ali Sher and others tried to prevent the accused from firing and shouted "catch him, catch him". The accused then fired and the shot hit Budhu Khan as he was going after the accused to persuade him not to fire. Ali Sher, etc. were following when the accused fired third time, but the shot instead of hitting Ataullah Head Constable, hit a child who was being carried by another boy. In the above‑noted circumstances, learned Judges of the Supreme Court observed that according to the findings of the learned Judges of the High Court. Ataullah had given grave and sudden provocation to the appellant and that all the shots were fired in a minute or so. It was further observed "in these circumstances can it be said that the third shot was not fired at the time when the appellant had been deprived of the power of self‑control by grave and sudden provocation ? If the third shot had hit Ataullah who was the target of the attack by the appellant, the offence would have been one of culpable homicide not amounting to murder as Ataullah was the person who had given the provocation. The death of child named Din Muhammad was obviously caused by means of a mistake 'or accident during the period when the appellant had been deprived of the power of self‑control by grave and sudden provocation". The learned Judges in the circumstances of the case held that the third shot was fired at the person who had given the provocation and was fired during the time when the appellant had been deprived of the power of self‑control by grave and sudden provocation, and that if Ataullah had been killed by that shot, the appellant would have been guilty of culpable homicide not amounting to murder and as child has, by accident or mistake been killed in place of Ataullah, the offence committed by the appellant remains the same. The precedent case, therefore, is clearly distinguishable on facts from the case in hand, as the appellant Muhammad Afzal was not deprived of the power of self‑control by any grave and sudden provocation. The alleged abduction took place 5(6 years prior to the occurrence and it was Muhammad Nawaz who had admittedly abducted the paternal aunt of the appellant, and despite Muhammad Zaman's resistence Mst. Fateh Bibi was restored. The pro vocation, if any, would be against Muhammad Nawaz. Be that as it may, the question of grave and sudden provocation does not arise in this case at all.

8. The fact, however, remains that the appellant fatally injured Ahmad Khan while he was lying with his‑father on the same cot. There are two probabilities‑ (i) that the appellant intending to kill Muhammad Zaman gave a blow which bit the boy who was lying with him, or (ii) that he wanted to wipe out the young boy as well as the father. In both these cases, the offence made out against the appellant would be of murder on account of causing .the death of Ahmad Khan under sections 302 and of 307, P. P. C. for making murderous assault on Muhammad Zaman the father. Under the Penal Law as it stands, so far as the actual killer is concerned, the position is that if he has caused the death of a person whose death he neither had intended not known himself likely to cause, he can still not be heard to say that he actually never intended to do so and that the death of the victim which was actually caused was never intended by him. In the case of heinous offence such as murder, this defence is not available to a killer. Interpreting section

301. P. P. C. it was observed in Muhammad Arif v. The State (P L D 1962 Lah. 498) "that a man who has, in effect, an unlawful and malicious intent against another and, in attempting to carry it out, injures a third person, he is guilty of what the law deems, malice against the person injured, because the offender is doing an unlawful act and has that which the Judges call general malice, and that is enough. 1886 17 Q B D 359,

461. The principle is applicable where, through accident, or a mistake of a party not privy to the criminal design, the mischief falls either on a person not intended or on the party intended, but in a different manner from that intended. In the present case, it is obvious that the appellant had intended to kill Mst. Maqbul Jan. The blow which he had aimed at her had killed Mst. Bilqis Begum, he must .on the principle stated above be held to be guilty of the murder of Mst. Bilqis Begum. He has, therefore, been rightly convicted and sentenced under section 302 of the Pakistan Penal Code for the murder of Mst. Bilqjs Begum". We are in respectful agreement with the view taken by the learned Judge in the case of Muhammad Arif and we accordingly repel the submissions of the learned counsel .for the, appellant and hold that the appellant was rightly found guilty of the offence charged. There being no extenuating circumstance, we confirm the sentence of death awarded to the appellant. The appeal is accordingly dismissed. Death sentence confirmed.